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May Litigants Depose Court Appointed Expert Witnesses?

Image of GavelMay federal litigants depose court appointed expert witnesses?

Yes, as explained by Judge Jonathan Goodman in Procaps S.A. v. Patheon, Case No. 12-24356 (S.D. Fla. Apr. 24, 2015)Federal Rule of Evidence 706 expressly permits such depositions.

In the case (also detailed in a prior post), Judge Goodman appointed a neutral computer forensic firm and a special master to assist with e-discovery issues after plaintiff Procaps S.A. failed to institute a litigation hold for more than a year after filing suit and after allegations of evidence spoliation arose. The computer forensic firm determined Procaps deleted nearly 200,000 files of which approximately 5,700 contained relevant search terms. Patheon then moved to depose the forensic firm, which the judge allowed not only because Evidence Rule 706 permitted it, but also because it would assist the court to better understand the various e-discovery issues presented in the case.

Evidence Rule 706 permits federal courts to appoint expert witnesses on its own or at the request of a party and states that the expert:

  • must advise the parties of any findings the expert makes;
  • may be deposed by any party;
  • may be called to testify by the court or any party; and
  • may be cross-examined by any party, including the party that called the expert.

Judge Goodman noted that “plung[ing] into the thicket of the details surrounding Procaps ESI” would be “daunting” without testimony from the forensic firm that analyzed it. As a result, he permitted the deposition for several reasons: 1) The report was thousands of pages; 2) the computer forensics firm had been involved in the case for over a year; 2) the special master, and not the judge, was privy to e-discovery developments; and 4) any issues regarding ESI spoliation would be fact intensive and based in part on the findings of the appointed expert.

As detailed in the opinion, other courts have permitted depositions of court appointed experts:

Trigon Ins. Co. v. United States, 234 F. Supp. 2d 592, 593 (E.D. Va. 2002)(permitting deposition of court-appointed forensic expert about deleted files report to “avoid additional litigation over the manner in which that effort was conducted” and so that party could “prepare its own case for trial”); G.K. Las Vegas Ltd. P’ship v Simon Prop. Grp. Inc., 671 F. Supp. 2d 1203, 1224-25 (D. Nev. 2009) (permitting deposition of court-appointed forensic examiner on the deleted items report he prepared — and noting that “one of the principal reasons for the court to appoint an expert witness is to obtain impartial testimony to aid the court or the jury in resolving a scientific issue”) (emphasis added); Platypus Wear, Inc. v. Horizonte Fabricacao Distribuicao Importacao E Exportacao Ltda., No. 08-cv20738 (S.D. Fla. June 25, 2012) (court-appointed forensic examiner who prepared reports as to whether data had been transferred or deleted from a server referenced his “deposition for this case” in his trial testimony); Malibu Media, LLC v. Does, No. 12-cv-2078 (E.D. Pa. June 10, 2013) (Court, in docket entry 179, provides counsel opportunity to depose an appointed expert witness who testified about concern about writing over original evidence); Multifeeder Tech, Inc. v. British Confectionary Co., No. 09-cv-1090 (D. Minn. Sept. 18, 2012) (court-appointed ESI expert prepared a log of deleted documents and was deposed); Krumweide v. Brighton Assocs., LLC, No. 05-cv-3003, (N.D. Ill. May 8, 2006) (counsel afforded right to depose court-appointed third-party neutral expert about his report on destruction of files from a laptop computer).

Posted on May 15, 2015 in E-Discovery, Evidence, Scope of Discovery

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.